Opinion
No. 01-03-00126-CV.
Opinion issued April 1, 2004.
On Appeal from the 164th District Court, Harris County, Texas, Trial Court Cause No. 2001-43727.
Larry E. Meyer, McCormick, Hancock Newton, Houston for appellant.
David George, Edwards George, LLP, Houston for appellee.
Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
MEMORANDUM OPINION
This is an appeal of a jury's finding that a 20-foot strip of property belongs to plaintiffs/appellees William and Nita Macha because they were in privity with the property's previous owner who had acquired that strip of land via adverse possession. In two points of error, defendants/appellants Minh Thu Tran, Norman L. Roser, and Washington Mutual Bank, FA contend that the evidence is legally and factually insufficient to support a finding of adverse possession. We affirm. Factual Procedural Background
The disputed property is part of a West University subdivision originally developed and platted in the late 1920s. The lots on the block in question were all intended to be 50 to 55 feet wide. When the lots were staked, however, they were staked so that the intended houses themselves would be located 50 feet apart from one another. This mistake ultimately led to lot 5's being 70 feet wide instead of 50 feet wide. The extra 20 feet of land were thought to lie on the east side of the house that was eventually built on lot 5 and were thought to belong to lot 5's owner. Actually, the extra 20 feet lay on the west side of the house built on lot 5. At some point in the 1940s, the original owners of lot 5 built a home and a garage, inadvertently locating the garage and driveway on part of lot 6, as well as on lot 5.
In 1970, the Halliburton family bought lot 5 (4136 Case street). At that time, the Budde family, which was related to the Halliburton family, had been living in the home on lot 6 (4132 Case street) for about 15 years. The Buddes and the Halliburtons both treated the garage and driveway as belonging to the Halliburtons. The Halliburtons used this driveway and garage for their cars for over 20 years, until Lillian Halliburton stopped driving. At that point, she moved her washer and dryer into the garage. Pictures of the adjacent lots show that the Buddes built their own garage and driveway on the east side of their lot, just a few feet away from the Halliburtons' driveway. Relations between the two families and their neighbors were always cordial through the years.
One of the Budde daughters, who lived next door to the Halliburtons while growing up, testified that she and her family had always believed that the Halliburtons owned the garage and driveway. The record further shows that the Machas, Tran, and Roser also all believed the same thing until the land was surveyed in 2001.
In 1989, the Machas bought the house on lot 4 and have lived there ever since. In 1995, Tran and her husband, Roser, bought the Budde family home on lot 6. They lived there for several years, then moved into a nearby house. They intended to tear down the house on lot 6 and build a new house there. In the interim, they rented the house to tenants. The Machas and Tran and Roser were friends, as well as neighbors, and discussed jointly buying lot 5 from the Halliburtons and splitting the property so that they would own contiguous extra-large lots. For reasons that are not clear from the record, Roser and Tran apparently withdrew from the deal and the Machas purchased lot 5 from Lillian Halliburton in May 2001 without Roser's and Tran's participation. The property disclosure form prepared in anticipation of the sale of lot 5 from the Halliburtons to the Machas indicates that the lot included a free-standing garage in tear-down condition.
When the Machas obtained a survey before buying lot 5, they discovered that lot 5 did not conform to the official platted boundary lines. Therefore, in addition to securing a general warranty deed conveying all of lot 5 from Lillian Halliburton, the Machas secured a quitclaim deed conveying any interest in the western 20-foot portion of lot 6 that Halliburton might have acquired by adverse possession.
Soon thereafter, the Machas put lot 5 on the market. Because of the additional width of the property, its value increased by half, from roughly $200,000 to $300,000.
At about the same time, Roser received a letter from the City of West University informing him that the garage serving the house built on lot 5 was a hazard and, as the owner/taxpayer of lot 6, he needed to demolish or repair the garage. When they discovered that the garage and driveway everyone had thought was part of lot 5 was actually part of their lot — lot 6 — Roser and Tran laid claim to it, obtained a fence permit from West University, and fenced it off.
The Machas filed a trespass to try title suit; they sought a temporary restraining order to prevent Roser and Tran from tearing down the garage, and they sought to remove the new fence. Pending a legal resolution of the dispute, the Machas took lot 5 off the market. Roser and Tran counterclaimed, seeking declaratory relief and removal of cloud on their title.
The jury was asked only one question:
Have WILLIAM MACHA and NITA MACHA and their predecessors in privity of estate under whom they claim held the Property in question in peaceable and adverse possession and cultivated, used or enjoyed the Property in question for any period of at least ten years prior to August 24, 2001?
"PRIVITY OF ESTATE" means a transfer and delivery of possession from one possessor to the next.
"PROPERTY" means the westerly twenty feet of Lot 6, Block 26, Colonial Terrace, Section C, an Addition in Harris County, Texas.
"PEACEABLE POSSESSION" means possession of real property that is continuous and not interrupted by a lawsuit to recover the property.
"ADVERSE POSSESSION" means an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.
The jury unanimously answered, "Yes." The trial court awarded full title and possession to the Machas, and the parties bore their own attorney's fees. Roser and Tran filed a motion for judgment notwithstanding the verdict, which the trial court denied, and a motion for new trial that was overruled by operation of law.
Analysis
In two related points of error, Roser and Tran contend that the evidence is legally and factually insufficient to support the jury's finding that the Machas adversely possessed part of lot 6. Standard of Review
As a threshold matter, we first address the Machas' contention that these points of error are waived because Roser and Tran offer a definition of adverse possession that differs slightly from the definition provided to the jury. Roser and Tran define adverse possession as "hostile, exclusive, open and notorious, actual, and continuous for the statutory period." We consider these differences to be negligible; thus, we conclude that the issues raised on appeal comport with the issues raised before the trial court. See Dayton Hudson Corp. v. Altus, 715 S.W.2d 670, 675 (Tex. App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.) (noting that error raised on appeal must comport with objection at trial).
In a no-evidence, legal sufficiency review, we must consider only the evidence and inferences from evidence that support the trial court's findings and must disregard all evidence and inferences to the contrary. Heldenfels Bros. Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992). In a factual sufficiency review, we will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Adverse Possession
Adverse possession is defined as "an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person." Tex. Civ. Prac. Rem. Code Ann. § 16.021(1) (Vernon 2002); Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990). A person must bring suit no later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property. Tex. Civ. Prac. Rem. Code Ann. § 16.026 (Vernon 2002). In other words, if the Halliburtons adversely possessed the disputed strip of property, then the Machas possess it because they are in privity with the Halliburtons.
It is simply not disputed that everyone believed the Halliburtons owned the garage and driveway that were built in part on lot 6, which they did not own and on which they did not pay taxes, and used the garage and driveway continuously for at least 15 years. This fact alone constitutes legally and factually sufficient evidence to sustain the jury's finding.
The crux of Roser and Tran's challenge, both at trial and on appeal, rests on a fundamentally incorrect interpretation of the law of adverse possession. As they define adverse possession, the possession here could not have been adverse because it was not "hostile," i.e., the possession of the 20-foot strip was accidental, not intentional, and relations between the Halliburtons and the Buddes at the time the land was being adversely possessed were harmonious and cordial.
The true meaning of "hostile" in the context of adverse possession refers to whether the claim is inconsistent with the rights of the true owner, not to whether the parties themselves are hostile to one another personally. See Taub v. Houston Pipeline Co., 75 S.W.3d 606, 625 (Tex. App.-Texarkana 2002, pet. denied) (noting that claim is hostile when acts performed by claimant and use made of land are of nature and character that would reasonably notify true owner of adverse claim). There is no authority to suggest a meaning other than this, nor is there any legal requirement that personal animosity be present.
The law is also well settled that adverse possession need not be intentional, so long as it is "visible, open, and notorious." See Calfee v. Duke, 544 S.W.2d 640, 642 (Tex. 1976) (holding that claim of adverse possession not defeated by claimant's lack of knowledge that there could be other claimants for the land); accord King v. Inwood N. Assocs., 563 S.W.2d 309, 312 (Tex. App.-Houston [1st Dist.] 1978, no writ) (noting fact that adverse possessors' mistaken belief that they owned land in controversy did not defeat claim). Both the garage and the driveway constituted an entirely visible use of lot 6 from the time they were mistakenly built on part of 6, and were used continually for more than 10 years. However unintentional, this open and continuous use of 20 feet of lot 6 for more than 10 years by the owners of lot 5 in ways inconsistent with the use and enjoyment of the 20-foot strip by the true owners, as if that portion of lot 6 belonged to the owners of lot 5, satisfies the definition of "adverse possession." Accordingly, we overrule both points of error.
We affirm the judgment of the trial court.